SC Administrative Law Court Decisions

This matter comes before me pursuant to S.C. Code Ann. §§ 61-1-55 (Supp. 1995), the Administrative Procedures Act, §§ 1-23-310, et seq. (Rev. 1986 & Supp. 1995), and § 12-60-1320 (Supp. 1995) of the Revenue Procedures Act, upon the application of James C. Sessoms for an on-premises beer and wine permit at the Clio Recreation Center, located at 109 Redbluff Street, Clio, South Carolina, in Marlboro County. The Clio First Baptist Church and others protested the application. After notice to the parties and protestors, a contested case hearing was conducted on April 21, 1997, at the Administrative Law Judge Division in Columbia. Based upon the evidence presented, the application is GRANTED.

Any issues raised in the proceeding or hearing of this case not addressed in this Order are deemed denied. ALJD Rule 29.FINDINGS OF FACT

I make the following findings of fact, taking into consideration the burden on the parties to establish their respective cases by a preponderance of the evidence, and taking into account the credibility of the witnesses:

1. Petitioner, James C. Sessoms, filed an application for an on-premises beer and wine permit for the Clio Recreation Center, 109 Redbluff Street, Clio, South Carolina, on November 6, 1996, with the Department of Revenue ("DOR").
2. Petitioner is a legal resident of the United States and South Carolina.
3. Petitioner has never had any type of permit for the sale of beer, wine, or alcoholic liquors revoked.
4. Petitioner is over the age of twenty-one and has no criminal record. He is a person of good moral character.
5. Notice of application appeared in The Marlboro Herald-Advocate on October 28 and November 4 and 11, 1996, and was posted at the location for the requisite time period.
6. The Department of Revenue issued a Final Department Determination on January 9, 1997, denying the application because of public protests against the issuance of the permit.
7. The proposed location is a game room, which has several pool tables, foosball tables, pacman games, a juke box, and a bar. Sessoms also sells soft drinks, sandwiches, and hot dogs.
8. The proposed location is open from 9:30 a.m. until 11 p.m., Monday through Saturday and is located within a commercial and incorporated area of Clio.
9. Signs warnings against loitering and breaching the peace are prominently posted within the proposed location.
10. A vacant store and the Clio Launderama neighbor the proposed location on either side. A vacant lot is located directly across the street from the proposed location.
11. There are no schools or playgrounds near the proposed location.
12. The Clio Baptist Church is located 293 feet from the proposed location. The church protested the application on the basis that the proposed location was unsuitable to sell beer and wine on-premises and that it would be detrimental to the youth of the community. Further, the church opposes the sale of alcohol owing to its effects on society in general. The church cited to various studies and academic journals detailing the detrimental effects of alcohol.
13. The church has not demonstrated that the particular problems in the Clio community are attributed to the sale of beer and wine. The church has not established that problems encountered under previous management at the establishment several years ago would be repeated under management by Petitioner.
14. Alcohol is already readily available for sale in the area. Dennis Grocery, around the corner from the proposed location on S.C. Highway 9, is the nearest permitted location and sells beer and wine for off-premises consumption. There is a retail liquor store a few blocks from the church.
15. As a former corrections officer, the Petitioner has had experience in dealing with unruly or difficult people.
16. Petitioner has indicated his ongoing concern for the youth of the Clio area, and that he will operate the proposed location mindful of the community's social problems.

Based upon the Findings of Fact, I conclude as a matter of law, the following:

1. The Administrative Law Judge is vested with the powers, duties and responsibilities of hearing officers of the former Alcoholic Beverage Control Commission and hearing officers pursuant to Chapter 23 of Title 1. S.C. Code Ann. § 61-1-55 (Supp. 1995).
2. S.C. Code Ann. § 61-9-320 (Supp. 1995) provides the statutory requirements for the issuance of on-premise beer and wine permits. It provides that no permit authorizing the sale of beer or wine may be issued unless "[t]he location of the proposed place of business of the applicant is in the opinion of the department a proper one. The department may consider, among other factors, as indication of unsuitable location, the proximity to residences, schools, playgrounds, and churches. . . ." S.C. Code Ann. § 61-9-320(6) (Supp. 1995).
3. As the trier of fact, the Administrative Law Judge is authorized to decide the fitness or suitability of the proposed business location for a permit to sell beer and wine using broad, but not unbridled, discretion. Byers v. South Carolina ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
4. Although "proper location" is not statutorily defined, broad discretion has been vested in the finder of fact in determining the fitness or suitability of a particular location. See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981); Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972); and Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).
5. The determination of suitability of the proposed location is not necessarily a function solely of geography. It may involve an infinite variety of considerations related to the nature and operation of the proposed business and its impact on the community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).
6. The denial of a permit to an applicant on the ground of unsuitability of location is without evidentiary support when relevant testimony of those opposing the requested permit consists entirely of opinions, generalities, and conclusions not supported by facts. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972); Taylor v. Lewis, 261 S.C. 168,198 S.E.2d 801 (1973).
7. Standards for judging the suitability of a proposed location for the sale of beer and wine are not determined by a local community's religious convictions. Rather, criteria must be uniform, objective, constant, and consistent throughout the state. The regulated sale of beer and wine is a lawful enterprise in South Carolina. Further, this Court must decide to issue or deny a beer and wine permit based solely upon the relevant facts and the applicable law.
8. The proposed location is suitable for the issuance of an on-premises beer and wine permit.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

ORDERED, that the Department of Revenue shall issue an on-premises beer and wine permit to James C. Sessoms, d/b/a Clio Recreation Center, located at 109 Redbluff Street, Clio, South Carolina, upon the payment of the appropriate fees.

AND IT IS SO ORDERED.

________________________________________

ALISON RENEE LEE

Administrative Law Judge

June 23, 1997.

Columbia, South Carolina